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Law column: Supreme Court reaffirms Open Justice principle


Not a week goes by without a Court making an Order restricting the reporting of a criminal case – which is why the Supreme Court’s recent reaffirmation of the crucial importance of open justice is to be welcomed.

In a case involving an aluminium company and a support group for victims of mesothelioma, the Supreme Court Justices stated in clear terms that there are two fundamental principles which underlie open justice.

First, to enable public scrutiny of the way in which courts decided cases, to hold judges to account for their decisions, and to enable the public to have confidence that they are doing their jobs properly; and second, to enable the public to understand how the justice system works and why decisions are taken, which can only be achieved if the public is able to understand both the issues and the evidence adduced in support of the parties’ cases.

But it is also worth noting that the Court stressed that the open justice principle has its limits.

The case itself (called Cape Intermediate Holdings v Dring) concerned an application by the support group for disclosure of documents which the company possessed from a previous case in which it was involved.  They believed that the documents would contain information about the dangers associated with asbestos.

In the lead judgment, Lady Hale said: ‘The default position should be to grant access to documents placed before a judge and referred to by a party at trial unless there was a good reason not to do so. It should not be limited by what the judge has chosen to read.’

But having made this strong statement of principle, she went on to say that just because a Court has inherent jurisdiction to allow access to filed documents, the public (and thus the media) do not have an enshrined right to these documents.

Therefore, when applying to gain access to these documents, the individual must explain and give justified reasons as to why allowing disclosure would advance the open justice principle.

In the context of open justice more generally, Lady Hale made this important statement: “The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state.  It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question”.

And even more interestingly, she said that Judges have the inherent power to overrule anything that the court rules may provide: “The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.”

This is strong stuff – but what does this mean for the working journalist in practice?  After all we have all heard horror stories of journalists being excluded from courts of all kinds, quite often by ushers, security guards, or clerks.

Well, at this practical level, the answer must be to hold firm and demand (well, request politely) that the matter be put before the judge and that you have the opportunity to explain why the principle of open justice means you should access to the Court.  Being able to quote from Lady Hale’s judgment in Cape will be a big help.

Happy court reporting!